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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

 

Grand jury leaks and the press.

1. Are leaks of Grand Jury testimony punishable by law?

Response: In the federal system, Federal Rule of Criminal Procedure 6 says that a knowing violation of grand jury secrecy is punishable as criminal contempt (which is a crime like any other). Those who have violated grand jury secrecy have also been prosecuted for obstruction of justice, in addition to or instead of criminal contempt. (The charge brought usually depends on the circumstances: If, for example, a grand juror leaks details of an investigation to the target of the investigation, this will probably be prosecuted as both criminal contempt, for knowingly violating secrecy, and for obstruction of justice, since the leak was intended to let the target try to avoid prosecution).

2. If a newspaper prints a secret testimony leaked from Grand Jury Proceedings, what protects the newspaper from prosecution as a handler of stolen goods?

Response: The newspaper would probably not be considered as a handler or stolen goods, since the information is not really "property." The newspaper might be considered an aider and abettor of the person who violated grand jury secrecy and/or a party to a conspiracy to violate grand jury secrecy; either of these theories can be used to hold the aider and abettor or the conspirator liable for the other party's substantive offense(s), e.g., criminal contempt and/or obstruction of justice.

I'm not aware of any prosecutions like this, though. This may be because newspapers either haven't been given the opportunity to disseminate illegally revealed grand jury material or, if given such an opportunity, have declined to do so. Also, the newspaper might claim it did not realize the information was illegally disseminated (e.g., that the newspaper believed the information was legally available), and it might be difficult to establish this element, which is essential to charging the newspaper.

Concerning your response to the newspaper acceptance of leaks. PBS ran a series covering reporter acceptance of information from "Sources close to the White House", or "Sources close to the OIC", and it was clear that they had in mind a particular individual, known to more than one person... When questioned about the "crime" of leaking Grand Jury information, they virtually all responded that the crime was that of the leaker, not of the newspaper. It seems clear, that in many instances, the newspapers know the leak source only too well, but no one seems to fret about culpability.

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